Black & Anor v Sumitomo Corporation & Ors

Where an expedited appeal listing is reconsidered, the court should balance prompt disposal against the practical prejudice and burdens an early or late hearing may cause. Relevant considerations include limitation risks, the cost of continuing the underlying exercise, appeal complexity, preparation requirements and counsel availability. An expedited listing need not be vacated because instructed leading counsel may be unavailable if suitable replacement representation can be arranged.

The appeal arose from an order by Michael Brindle QC, sitting as a Deputy High Court Judge in the Commercial Court, requiring Sumitomo to give pre-action discovery under Civil Procedure Rule 31.16 by 12 October 2001. Brooke LJ later granted permission to appeal and a stay. An administrative misunderstanding led the parties and court office to treat expedition as ordered, and the appeal was listed for 3 or 4 October rather than within the ordinary February–April window. Sumitomo applied to vacate the earlier listing. The issue was whether the appeal should be heard urgently in light of possible limitation prejudice and the parties’ competing practical difficulties.

1. Application dismissed. The appeal was to remain listed for 3 or 4 October 2001, with listing to try to secure 4 October. If 3 October proved necessary, it was to stand. Costs were costs in the appeal.
2. Lord Justice Waller approached the listing issue afresh. He did not treat the administrative assumption that expedition had been ordered as determinative. Both parties in reality wished the appeal to be decided as soon as possible.
3. The court balanced the practical considerations. Delay might create a limitation problem. The discovery exercise was complex and involved substantial expense and employee time, which might be wasted if the appeal succeeded. It could continue while the appeal was pending, and the applicants offered to meet interim costs if necessary.
4. The appeal could probably be argued in one day, with skeleton arguments being important. Although Sumitomo might need replacement leading counsel, suitable counsel could prepare the appeal in time. That inconvenience did not outweigh the importance of early determination.
5. The overwhelming consideration was that the appeal should be disposed of sooner rather than later. The application to vacate the October listing was therefore dismissed.

• Court of Appeal (Civil Division) — Sumitomo’s application to vacate the expedited October listing was dismissed. Costs were made costs in the appeal.
• Commercial Court, Queen’s Bench Division — Michael Brindle QC, sitting as a Deputy High Court Judge, ordered pre-action discovery under Civil Procedure Rules 1998, r 31.16, allowed two and a half months for compliance and refused permission to appeal.
• Court of Appeal — Brooke LJ later granted permission to appeal and a stay. The judgment records uncertainty whether expedition itself had been granted.